InDyne, Inc. v. Abacus Technology Corp.

DisputeSoft was retained as a testifying expert for the defendant in the matter of InDyne, Inc. v. Abacus Technology Corp., a copyright infringement and trade secret misappropriation dispute between Abacus, an incoming NASA contractor, and InDyne, an outgoing NASA contractor concerning allegedly stolen software. InDyne alleged that Abacus had obtained and unlawfully copied certain software developed by InDyne during the transition period between their respective contracts with NASA’s Kennedy Space Center. DisputeSoft software copyright infringement expert Jeff Parmet provided analysis and testimony demonstrating that InDyne failed to preserve an original copy of the version of the software at issue and therefore could not produce the evidence necessary for a trier of fact to determine whether the accused software was substantially similar to InDyne’s copyrighted software.

From 2003 to 2008, InDyne provided NASA’s Kennedy Space Center with IT and communications services using a proprietary set of software modules that InDyne continuously customized and further developed throughout the course of the contract. When Abacus assumed responsibility for these services under the terms of a new contract in 2008, a few weeks before a scheduled launch, NASA requested that Abacus preserve the functionality, look and feel of the system used by InDyne to ensure that NASA employees would not be forced to familiarize themselves with an entirely different system in such a short period of time. As part of the transition between contracts, Abacus received certain software modules that InDyne had created and used during the term of the previous contract. InDyne alleged that Abacus had copied InDyne’s proprietary software without consent for purposes of satisfying Abacus’s contract with NASA, and subsequently filed suit against Abacus for copyright infringement, trade secret misappropriation, and civil theft.

DisputeSoft analyzed the source code at issue and established that it was not a copy of the registered work as it existed at the time of its publication in 2003, but instead was a version that had been substantially modified from 2003-2008 in order to meet NASA’s contractual requirements. Mr. Parmet found that the software version InDyne had registered for copyright included source code to which InDyne had no valid copyright claim, such as code that was authored by third parties or open-source. Mr. Parmet also found that the registered software included source code created under contracts which expressly conferred the government with an exclusive license to use or modify InDyne’s source code for its own use. In his expert report, Mr. Parmet explained that InDyne’s failure to produce an intact copy of the software version registered for copyright rendered it impossible to test whether the allegedly infringing work was “substantially similar” to InDyne’s copyrighted work, as is required for purposes of proving copyright infringement.

The court granted Abacus’s motion for summary judgment on InDyne’s copyright infringement claim, ruling that InDyne could not meet its burden of proving which portions of its software code were protected by its registered copyright.